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D&X / PBA Procedures:

Failed attempts to pass a federal law
outlawing
the
practice: 1995 to 1997.Part 1

Rep. Canady (R-FL), supported by 28 other members introduced resolution HR
1833 1995-JUN-14 to the House of Representatives. If passed, it would have been given the short title of "Partial-Birth Abortion Ban of
1995." Chapter 74 would have been added to Title 18 of the United
States Code. Section 1531 would state:

(a) Whoever, in or affecting interstate or foreign commerce, knowingly performs a
partial-birth abortion and thereby kills a human fetus shall be fined under this title or
imprisoned not more than two years, or both.

(b) As used in this section, the term 'partial-birth abortion' means an abortion in
which the person performing the abortion partially vaginally delivers a living fetus
before killing the fetus and completing the delivery.

The bill would have allowed a physician to defend the use of a D&X
procedure if "the partial-birth abortion was necessary to save the life of the woman upon whom
it was performed, and no other form of abortion would suffice for that purpose."
[In most cases, a hysterotomy could be performed. However, it is major
surgery, involves much higher infection risks to the woman, and can have a
severe negative impact on future pregnancies.]

Senate hearings were held, starting in mid 1995-NOV. An enormous amount of
conflicting and mutually exclusive testimony was given (US Senate Hearing Report
104-260). As in war, truth is often the first casualty in controversial religious
topics:

Some testimony revealed that state laws concerning third trimester
abortions and/or state medical society regulations have been violated
by physicians. D&X procedures had been conducted for elective
reasons: e.g. because the woman was suicidally depressed. Others
testified that D&Xs were only done when the fetus was dead (or
hopelessly malformed) or when the woman's life was at risk or when the
woman's long term health would be seriously damaged.

Some testimony stated that during a D&X, the fetus is
anesthetized and cannot feel pain; others said the opposite: that the
anesthetic cannot pass the placental barrier and affect the fetus.

Some authorities testified that fetuses cannot feel pain under any
conditions; others testified that an embryo can feel pain at an early
gestational age in the first trimester.

These people are experts. Some appear to be either not telling the truth, or unaware of reality. Further, it seems certain
that many were consciously lying in order to promote their religious or
political positions.

Pro-choice groups lobbied Congress to modify the bill so that it would
allow the procedure in those rare cases where the woman needed a D&X
in order to avoid very serious, permanent health problems. Senator Boxer
(1995-DEC-7) proposed an amendment that would have allowed D&Xs "after viability where, in the medical judgment of
the attending physician, the abortion is necessary to preserve the life of the woman or
avert
serious adverse health consequences to the woman." Ex-Surgeon General C
Everett Koop said that this amendment was a "complete sham"
It would "not outlaw a single one of the thousands of partial-birth abortions performed
each year." 1 Dr. Koop appears to believe that all
D&Xs are done to avoid serious adverse health consequences to the
woman or to save her life.

This amendment was defeated.

The House bill was passed in late 1995 with votes 288 to 139 and 286 to 139,
largely with Republican party support. The Senate passed the bill 54-44 on
1995-DEC-7. President Clinton wrote of having "studied and prayed about this issue...for many
months," of finding the procedure "very disturbing," and of seeking "common ground...that respects the views of those -- including myself --
who object to this particular procedure." He indicated that if there
were a provision in the bill like Senator Boxer had proposed, that he would have
signed it into law. But he felt that too many women would be disabled or have
their long term health seriously damaged if the bill were made law. Because it
would not "allow women to
protect themselves from serious threats to their health," he vetoed
the bill on 1996-APR-10.

An attempt to overturn the presidential veto passed in the house but failed
in the Senate. The vote was 57 to 41 in favor of passage, which was short of the
2/3 majority vote required to override a presidential veto. Some in the pro-life movement have
consistently misrepresented the President's stand by incorrectly stating that
the President wanted very late term D&Xs to be legal for simple "health"
reasons. The term "health" had been defined by the courts
very broadly, to include suicidal ideation, depression, etc. In fact, he wanted
a clause to protect women from:

permanent physical disability, or

a devastating degeneration to their health.

In 1996-DEC, President Clinton again declared he would sign an amended ban on
partial-birth abortions - one that would criminalize D&Xs except when they
are required to prevent devastating, long-term health consequences to the woman.
This is a much narrower criteria than "the Roe/Doe definition of health,"
specifies.

Many pro-life leaders continue to say that President Clinton is
misrepresenting the facts. Some incorrectly state that he is using the
all-inclusive Roe/Doe definition of health. 2 Some state that
his version would stop almost no D&Xs. The latter statement appears to be an
admission by pro-life groups that essentially all D&Xs are performed to
avoid overwhelming, long-term damage to the woman's health or to save her life.

A bill banning D&Xs was reintroduced into the House in early 1997. Its
wording was essentially unchanged from the earlier version. D&Xs would be
criminal acts at any stage of pregnancy, unless required to save the life of the
woman. President Clinton again threatened to re-veto the legislation in its
original form. The bill easily passed through the House in 1997-MAR-20 as HR
1122 with a vote of 295 to 136.

According to the Family Research Council's 1997-APR-3 newsletter by Gary
Bauer, a consortium of pro-life agencies planned to promote the creation of a
series of federal laws. They would:

Ban all abortions in the second and third trimester. It is unclear
why they would push for such a law. The Supreme Court has already ruled that
such limitations are unconstitutional. A federal law would be nullified by a
court injunction within hours of being signed into law. With the present
makeup of the U.S. Supreme Court, the only way to constitutionally
achieve a ban of 2nd and 3rd trimester abortions would
be by a amendment to the U.S. Constitution.]

Their next goal
will be to ban:

All abortions, presumably even those necessary to preserve the life
of the woman;

These laws would require enforced parenthood for all pregnant
women. Terminally ill people experiencing unspeakable agony will
be required to continue in pain until their bodies finally "give up the
ghost."

In 1997-MAY, two D&X bills were introduced into the Senate.

The
Republican version was identical to that previously passed in the House.

The
Democratic version would criminalize any D&X performed after the fetus
became viable unless required to avoid the likely death or grievous damage to
the health of the woman.

A White House spokesperson stated that President
Clinton would sign the latter bill if it were passed by Congress.

There was a large degree of consensus in the Senate and House on the
conditions under which D&Xs should be outlawed. There was a general
agreement that:

D&Xs should be allowed if it is necessary to save the woman's
life.

D&Xs should be allowed if the fetus is dead.

D&Xs should not be allowed for ordinary health reasons.

D&Xs should not be allowed in cases of rape or incest.

D&Xs should not be allowed in cases where the fetus is very
severely malformed and would die within hours or days of birth. (e.g.
the fetus may have developed with only a brain stem in place and
without a functioning brain. If it were delivered normally, it would
die in a few days, and never attain consciousness. During those days,
no brain function would be present because there is no brain present
in the skull. The "baby" would be like a very precisely
constructed doll, with no thought processes, no awareness of self or
the environment. But it looks like a baby, so many people feel that it
should not be aborted.)

A major difference of opinion exist in situations where the life of the
woman is not in jeopardy, but her health would be "grievously damaged"
unless she was given a D&X procedure. These are situations in which
the woman would be severely disabled or would suffer very serious long
term health problems. The Republican bill would not allow a D&X in
this case; the Democratic bill would permit the procedure if the woman and
her physician decided that it was the least-worse option.